Tag Archives: laws

Testing urine for cannabis does not improve on-the-job safety. It not only fails to measure impairment, a new study confirms cannabis users have an even lower accident risk than straight people.

The entire reasoning for drug testing workers and drivers is based on the assumption that any use will cause impairment and therefore users would endanger themselves and others around them. Now a new study has undermined the rationale for drug testing workers, by showing that the use of cannabis actually reduced the risk of accidents.

Investigators at the Luasanne University Hospital in Switzerland assessed the association between the use of cannabis and/or alcohol and the risk of injury among 486 patients aged 16 and older treated for various injuries. They found alcohol use in the six hours prior to injury was associated with a three-fold elevated relative risk compared with no alcohol use, but cannabis use was inversely related to risk of injury, with only 0.33 the risk compared to no use. Cannabis users had less injuries and were actually safer than alcohol drinkers or even straight people. Despite the study’s relatively small sample size, investigators concluded:

“The results for cannabis use were quite surprising. … The present study in fact indicated a ‘protective effect’ of cannabis use in a doseresponse relationship.”

A prior case-control study conducted by the University of Missouri also reported an inverse relationship between marijuana use and injury risk, finding, “Self-reported marijuana use in the previous seven days was associated … with a substantially decreased risk of injury.”

New Zealand and Australia follow a common standard for urine tests (AS/NZS 4308:2008), which is based on the US Standard. It permits only two methods for analysing urine: EMIT or GCMS. No other type of urine test, and no other type of test such as hair, saliva or sweat, meets the standard because they are unreliable and have a high rate of incorrect positives and negatives.

Only EMIT and GCMS urine tests can be used for evidential purposes, and any other type of test should be challenged.

EMIT tests are usually conducted at doctor’s surgeries or medical centres or places like MedLab.

GCMS tests are performed by the government-owned ESR, who have close ties with the police and who also analyse samples collected by NZ Drug Detection Agency Ltd, a privately-owned testing outfit run by former cops.

A simple on-site “screen” is sometimes used (that often resembles a home pregnancy kit) but these do not meet the standard and must be confirmed with proper lab analysis.

Urine tests are made to detect only the presence of THC-COOH, the non-psychoactive metabolite
of THC. A cut-off of 50ng/ml is allowed, supposedly to allow for any second hand smoke, but that figure is actually fairly arbitrary and based on little real science.

Evidence-based testing

Drug testing advocates claim it is about safety, but they only look for the inactive metabolite that remains after someone straightens up. THC from marijuana is converted to THC-COOH, which is fat soluble and can stay in the body for several months after use. Because urine analysis does not measure the presence of THC it cannot indicate when cannabis was inhaled or ingested, or whether a person is impaired.

If testing really was about on-the-job safety, as they claim, testers could just as easily look for the presence of THC itself, which is present while a person is high. Testers could set a limit for THC based on actual impairment.

In 2007 a research team led by Franjo Grotenhermen at from the Nova Institute in Germany showed a THC level in blood of 10ng/ml was equivalent to the legal drink-driving limit of 0.05. The study found that a level below this was not associated with an increased risk of injury.

Setting an THC level that is based on evidence and comparable to alcohol impairment would be more effective, just, and more widely accepted by workers and smokers.

Beating the test

The biggest question on the lips of most pot smokers is how long they have to stop in order to give a clean urine test. In anecdotal reports people say it takes anything from 2 days to 6 weeks to be clean, but there has not been a lot of actual research on the subject.

In a new study by the US National Institute on Drug Abuse in Maryland, USA, 60 regular cannabis users were monitored during 30 days of abstinence. Their urine was tested for the presence of THC-COOH, the non-psychoactive metabolite of THC. Surprisingly, researchers found there were considerable fluctuations between days with a positive urine test and days with a negative test during this period, rather than a constant decline in THC-COOH concentrations. The average number of days until the first negative test (THC-COOH below 50 ng/ml) was 3.2 days, while the average number of days until the last positive test was 15.4 days.

If you can’t wait that long, many stores now sell products designed to beat urine tests and maintain your privacy. But just as there are two officially sanctioned types of urine test, and others that are not approved, there are specialised products designed to work for each one. Make sure you get the right product for the test you are taking, or it may not work. One of the most widely used products is synthetic urine, that comes with a heating pad and pouring spout. It’s unisex, completely undetectable, and beats all types of urine test.

NOTE: this was written in November 2008 before the Bill was passed, so may no longer be accurate. The Bill became the Search and Surveillance Act 2012. This article should not be relied upon and is not legal advice. Consult your solicitor for any questions.

In the biggest shake -up for police search powers since the civil rights movement, the Government has tabled a new Search and Surveillance Powers Bill in Parliament. It draws together existing powers, creates several new police powers and retains the draconian warrantless search provisions of the Misuse of Drugs Act.

Five years ago, the Government asked the Law Commission to review the various search powers of law enforcement officials. It described the situation as “a mess”1. Significant changes proposed in the bill2 include a consistent approach to obtaining all search and surveillance warrants; expanded use of surveillance devices; more powers to search computers and seize electronic data; and new orders allowing law enforcement officials to compel people or companies to answer questions and turn over records.

Obtaining a warrant

Currently the threshold for obtaining a warrant varies between different search powers. The new law will set out a single standard for all search powers. This will require law enforcement officers to satisfy the issuing officer of reasonable grounds to suspect an offence has been or is about to be committed, as well as reasonable grounds to believe that the evidence sought is in the place
to be searched.

At present a search warrant can be issued by Judges and by any Registrar, Deputy Registrar or Justice of the Peace – regardless of their training or experience. Under the new legislation a search warrant will only be issued by Judges or “issuing officers”, who will be specially trained and appointed Registrars, Justices of the Peace and other “appropriately qualified and experienced” people. Some may be available 24/7. The bill also proposes allowing written applications for warrants to be able to be transmitted electronically, and oral applications will be possible
in certain “urgent” circumstances. Oral applications are particularly problematic, as that could mean
defendants will lose the ability to challenge the reasons for seeking them, as there would be no sworn affidavit to provide a record.

Warantless searches

The “emergency” warrantless search powers of the Misuse of Drugs Act will be retained. Section 18(2) of the Misuse of Drugs Act applies to all class A drugs, and some class B and class C drugs and precursor substances. This power is routinely abused by the police to get around the Bill of Rights and search anyone they want3. They simply say they can smell cannabis. Most people don’t
object to the search, or don’t fight it in court. But during the 2001-3 Cannabis Inquiry hearings so many people complained about the abuse of their rights that the Health Select Committee felt the need to remind police the “emergency” powers were “intended by Parliament to be used primarily for serious trafficking and supply offences, not for personal possession charges … Today these
powers are used as part of routine activities or street patrols.”4

The Law Commission noted that warrantless search powers are rare: they are found only in the Arms Act 1983 and the Misuse of Drugs Act. The absurdity of putting weekend tokers in the same league as gun runners and meth labs – and needing the same emergency search powers – seems to have been lost on the commissioners. They recommended both powers be retained as “justifiable exceptions of long-standing to the warrant requirement”. There are no changes proposed. As usual, accepted norms of justice, such as the Bill of Rights protection against unreasonable search – are conveniently forgotten when it comes to drugs. For example, the new law says internal body cavity searches are “generally prohibited” – except if they are looking for drugs.

When Police and Customs officers need the consent of a person to conduct a search, it may be worded like a threat, or a question that it is difficult to say no to. There is currently no clear definition as to what constitutes consent, and silence is taken to mean consent. The new law makes it clear that law enforcement officers should first have a valid reason for asking someone’s consent to perform a search, and that they should advise them of that reason, and of the fact that they may refuse consent. NORML reminds you at this point – never consent to a search!

Surveillance powers

Current law covers only audio surveillance, so video surveillance does not need a warrant. The new law says all electronic surveillance devices will generally require a warrant, which will only be issued by a District or High Court Judge. A warrant won’t be needed when visual surveillance devices are used in public or in public parts of buildings, or for unaided visual observation or
overhearing.

Protections applying to physical searches should apply to cyberspace, but the bill proposes allowing remote searches without the person even being aware it had been done. If surveillance powers are exercised, the enforcement officer must report to a Judge who will have powers to deal with material obtained, and report to the Chief Executive of the relevant law enforcement agency, and in some circumstances they will have to tell the subject of the surveillance they are being
spied on.

Self -incrimination

The bill overrides the right to remain silent by allowing law enforcement officials to obtain “production orders” to force people to produce specified information or documents in their control. An “examination power” will also allow enforcement officers to require a person to answer questions. The bill contains another power to question people with relevant knowledge obtained in a business context, such as in the course of providing professional services or advice, and a power to examine people with relevant knowledge obtained socially.

These sort of powers are not usually available to law enforcement officers as they go against the commonly accepted norms of justice. People have a right to remain silent and should not be forced to answer questions or make a statement. The token safeguard is that applications to use this power will need to be approved personally by the Commissioner of Police and the Secretary for Justice as well as being authorised by a District or High Court Judge. Officers will only be able to ask questions that are relevant to the investigation. The privilege against self-incrimination will still be available to any person (but not company) questioned under an examination order.

Safeguards

Officers carrying out a search of premises when the occupier is absent will have to let them know they were searched. Surprisingly, there is currently no obligation to do so with most search powers. If items are seized, the new law says a list of what has been taken should be promptly provided. The bill also contains a procedure to deal with privileged or confidential material or communications, such as lawyer-client privilege, to ensure it is appropriately protected from disclosure. While the bill contains a few protections, they are not enough.

Michael Bott of the NZ Council for Civil Liberties described the more intrusive police powers contained in the bill as a “jackbooted jump back to the past where the citizen has minimal protection against the might of the state.” The impact will depend, to a large extent, on the integrity of individual police officers, and there is little reason we should simply trust them and hope for the best. More comprehensive safeguards are needed, so make sure you have
your say.

The bill has not yet come back from the Law and Order Committee and so could still be significantly amended. It proposes to seize people’s assets even though they have not been convicted of any crime. It violates fundamental norms of justice, such as the presumption of innocence and the prohibition on double jeopardy, and could also breach the New Zealand Bill of Rights Act.

If passed, the bill would allow both conviction-based forfeiture and confiscation which requires no conviction for property that is said to be the proceeds of crime or unlawfully derived income. The same person may be the subject of criminal prosecution and confiscation action under the civil process. Those who are acquitted can still have their assets seized for unproved and unspecified
crimes. They would not even have to be prosecuted to have their assets seized. Furthermore, if they are prosecuted they could not use their disputed assets to fund their defence.

In a departure from the accepted norms of natural justice, people who are targeted must prove themselves innocent. The bill allows the government to use an absurdly low standard of proof – “reasonable cause to believe” – to seize assets. With insufficient evidence for a conviction, police may approach a High Court judge with a lower standard of proof to seize assets. Suspects may not even know they face action and may have no opportunity to defend themselves.

The bill specifies that “the court may not allow legal expenses to be paid out of the restrained property”, denying suspects the fundamental right to legal representation. The retrospective provisions in the Bill made it even more contemptible.

The Proceeds of Crime Act 1991

Under the existing Proceeds of Crime Act 1991, which the new bill would replace, almost the entire total amount confiscated has been from cannabis growers.

To seize property the police need only show that the property has been “tainted” – they don’t need to prove it was paid for using drug incomes. Furthermore, they only need show a civil burden of proof, i.e. a “balance of probabilities” rather than the usual proof of “beyond all reasonable
doubt”. Not only is the new bill repugnant, the Proceeds of Crime Act 1991 should also be repealed.

Maori

Maori are at particular risk of having their ancestral lands taken by the Crown – for a second time. Many Iwi and Hapu have only marginal lands left. Faced with little prospect of farming this land, little hope of legitimate employment and ongoing land rates to pay, some have chosen to use the opportunity cannabis prohibition has presented them with. Money may not grow on trees, but it does grow on cannabis plants that are almost worth their weight in gold. If they are caught Maori face not only a harsher average sentence but may have their ancestral lands confiscated under the Proceeds of Crimes Act, despite the obvious fact that the land could not have been paid
for using illicit drug money.

Police corruption

Asset forfeiture laws encourage corruption. There have been several reports of police impropriety in attempting to seize property including planting evidence and lying under oath. In one of the biggest sums awarded against police, in August 1999 Judge Michael Lance awarded Great Barrier Island man Colin Moore $54,000 towards the $100,000 he spent defending charges of cultivating cannabis and fighting to keep the family farm. Police did not photograph the evidence or give Moore the chance to look at the plants. They also left out evidence during the trial. The Police helicopter was allegedly spotted delivering a load of cannabis to Mr Moore’s farm. The farm had
been in the family for generations and could not have been paid for with drug money.

The Judge was scathing of the Proceeds of Crime Act. “It’s an invasion of personal privacy,” said Lance. “The legislation needs some careful attention.” Even the rather conservative New ZealandHerald opposed the new bill (27/11/04):

“It’s classically opinion-poll driven legislation that seeks to wipe out the rights of people who legitimately own property by seizing that property on what’s often no more than a suspicion. The onus is then on the owner of that property to prove otherwise. It can be very hard to prove income was legally derived without documented evidence.”

The government believes other countries have been more successful in seizing assets. However, in seeking to ‘get tough’ on drugs, they are trampling on all our rights and the principles of natural justice.

(NORML News Summer 2008. Next issue: in Pt.3 of this series Auckland lawyer Rob Weir reports on the progress of the bill and any changes made by the Law and Order Select Committee.)